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Careful on the Employee-Conduct Stuff

If you’re thinking of putting anything “official” out to your employees — i.e., in writing — saying you expect them to act in a positive and professional manner, and represent your company well …

… well … better think again.

Earlier this month, the National Labor Relations Board ruled that Cass City, Mich.-based Hills and Dales General Hospital violated federal law — i.e., the National Labor Relations Act — by establishing new work rules prohibiting negative comments and requiring all workers to represent the hospital “in the community in a positive and professional manner.”

The facts of the case, Hills and Dales General Hospital, are pretty interesting and might arouse some “there but for the grace of God go I” thinking among you. The acute-care hospital was wrestling with some pretty negative behavior on the part of employees that was responsible for a loss of customers, including back-biting, back-stabbing and gossiping. The hospital, wanting everyone involved in turning this problem around, sent its proposed Values and Standards of Behavior policy to all employees for comment. Then it issued the new policy to showcase the new culture.

Here were the clauses the NLRB didn’t like:

Teamwork

11. We will not make negative comments about our fellow team members and we will take every opportunity to speak well of each other.

16. We will represent Hills & Dales in the community in a positive and professional manner in every opportunity.

Attitude

21. We will not engage in or listen to negativity or gossip. We will recognize that listening without acting to stop it is the same as participating.

Indeed, the board concurred with an administrative law judge who ruled prohibiting “negative comments” and “negativity” violated workers’ rights to engage in protected, concerted activity. And the fact that employees were involved in the drafting of the new rules mattered not to the NLRB. It found, according to the alert, “that the rules were unlawfully broad and ambiguous on their face, and that ’employees might well endorse an unlawful rule, knowingly or not, but their consent or acquiescence cannot validate the rule.’ ”

Ballard Spahr partners Mary Theresa Metzler and Alexandra Bak-Boychuk, who authored the alert, say employers “should continue to take great care when drafting or issuing employee handbooks and policies to avoid overly broad restrictions [such as this hospital’s] that might violate the NLRA.”

Specifically, Bak-Boychuk told me directly:

While it’s difficult to predict what will happen next, I generally expect that the board will continue down the same path, meaning interpreting employee Section 7 [of the NLRA] rights [to organize, in a protected concerted activity] in a pretty broad way. I think we will continue to see close scrutiny of employer handbooks and policies, down to a granular level. In this case, for instance, one of the board members offered an opinion on the prohibition of ‘gossip,’ which wasn’t even at issue in the case.”

… paragraph 11 of the hospital’s policy is unlawful because employees would reasonably construe the language of the rule to prohibit Section 7 activity. Although the rule does not explicitly restrict Section 7 activity and the Acting General Counsel did not offer evidence that the hospital made statements or engaged in conduct that linked the rule to such activity, paragraph 11 implicitly includes protected activities because it prohibits negative comments about managers.”